NO BULL!

NO BULL!

 

The original intent of this column has been focused on making legal practitioners aware of how changes in technology affect our profession and ethical responsibilities. I take a quick departure from that goal, but not really, to discuss a new TV series on CBS entitled “Bull”[1] I am a fan of actor Michael Weatherly previously on “N.C.I.S.”  and a fan of using courtroom science in appropriate litigation situations. However, I am not a fan of Bull.

My take away from the first episode was the mischaracterization and minimalizing of the lawyer’s role with the client and the clear trampling upon of our profession’s standing by the writers. The thought that your trial consultant’s input is more important to your client’s case than an attorney’s professional advice is a theme developed throughout each storyline thus far, and is typically overtly demonstrated by the character’s dialogue. The character, Dr. Jason Bull, apparently has the ability to replace or subjugate any lawyer his client has retained either previously or in the future. Additionally, attorney work product privilege and ethical consideration seem to have no bearing as Dr. Jason Bull can change sides in a case that he has been retained in after he decides which party is worthy of his efforts.

Next up on my criticism hit list is the entire premise of the show is off-putting. Apparently U.S. citizens who have been taught and told that one of the fundamental hallmarks of the American way that makes our country different is our civil justice system, have been duped. According to Bull’s storylines, we as citizens serving on juries, are nothing but puppets to be manipulated by Dr. Bull and his minions. Regardless of the entertainment value, the show reminds viewers every week that when you are in a lawsuit, justice doesn’t matter, your lawyer doesn’t matter and jurors are to be manipulated such that justice prevails only to the manipulators. Great thoughts for the non-lawyering public to hold about lawyers and the civil justice system, right?

The entertainment value is average to above average primarily because of the use of technology to measure juror and shadow juror responses, but I cannot get beyond my lawyer eyeglasses on this show’s inherent flaws. I am not a fan of the messages that are being sold to the viewing public by this new series. Moreover, in a recent episode set in a fictitious Texas venue where stealing your opponents notes, strategy and playing every local good old boy trick in the book including getting the other side drunk before closing statements is just playing by the rules of the game. It is also ok to manipulate the courthouse elevators with jurors in them so as to demonstrate the points of your closing statement and the county wide weather warning system so that jurors will be forced to go in a basement where they can overhear rehearsed statements otherwise not admissible in court.

Sure, I am a believer in knowing your venue, effective voir dire, mock trials, focus groups, shadow jurors and creating juror profiles in appropriate cases. Who hasn’t been hometowned at some point in life? I even retain a high quality professional juror and trial consultant when case circumstances and a client’s budget will allow. But this show takes the good part of that technology, such as having data feedback that shows a juror’s bias to your position on an issue with red, yellow and green lights on multiple computer monitors and destroys it with a negative message that potentially impacts the public perception of our profession and the civil justice system. Do jurors now expect shenanigans and manipulation distrusting even the truest of motives? For that reason, I call bull on Bull.

Quickly back on point of our Open & Obvious intended purpose, note that the Oklahoma Rules of Professional Conduct were amended by SCBD 3490 effective immediately that, among other things, in the comment section to Rule 1.1 on Lawyer Competence at note 6 the language concerning maintaining competence includes the terms “including the benefits and risks associated with relevant technology.” So there you have it, get yourself competent.

Back to last month’s article on artificial intelligence, I was thereafter greeted in my inbox by several items I refer you to including “How AI Will Change the Practice of Law”[2], “Robots in Law: How Artificial Intelligence is Transforming Legal Services”[3] and “AI Predicts Outcome of Human Rights Cases”. Researchers claim an artificial intelligence computer system has correctly predicted the outcomes of hundreds of cases heard at the European Court of Human Rights to an accuracy of 79 percent.[4] Have a Happy Thanksgiving!

 

 

End Notes:

  1. http://www.cbs.com/shows/bull//
  2. ABA Law Technology Today, Nicole Black, November 1, 2016. Lawtechnology.org/2016/11/how-ai-will-change-the-practice-of-law-by-nicole-black
  3. Publishing date November 18, 2015 by Ark Group Publishing USA; http://www.ark-group.com
  4. bbc.com/news/technology-37727387?source=techstories.org; Jane Wakefield, Technology Reporter, 23 October 2016

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

 

 

 

 

 

 

 

 

 

Happy Halloween! Artificial Intelligence Attacks

Happy Halloween! Artificial Intelligence Attacks

We are always bringing some new computer program or file management system online at our firm. After the last several years of continuing education advisories that artificial intelligence is going to change the way we practice law, I pondered when these already online systems might become “self-aware”.

It all started with self-driving cars and smart trucks. Sure, who would not want to sit in their Tesla or Google vehicle watching a movie in the back seat while being driven around town? Or, how about the smart tractor-trailer eighteen wheel rig that avoids accidents. I have heard of and observed these in the real world for several years now. But can your professional judgment be replaced by a computer? What happens when businesses pool data concerning similar claims and risks in such a way that claims are efficiently handled, settled and closed…all without a lawyer or with minimal use of a lawyer. Blasphemy you say, maybe it is closer than we realize or want to acknowledge.

I finally came upon a blog article that actually makes good sense of the whole situation and want to recommend it for your viewing pleasure. It begins with a quote from a Chinese proverb “[w]hen the winds of change are blowing, some people are building shelters, and others are building wind mills.”[1] Author Steven Embry, a lawyer and “technologist” states that data analytics (DA), its brother predictive modeling (PM), combined with their new and improved cousin, machine learning “artificial intelligence” are gradually developing the highly effective tools for insurance companies and even self-insureds to better mitigate and resolve repetitive claims. Improved claims management stemming from the use of these tools would decrease litigation and legal spending, better still resulting in more predictable litigation outcomes and finally reduce overall liability exposure.

He goes on to state in his blog that industries like: 1. Hospitals and doctors “medical malpractice”, 2. Businesses with a high number of occupational claims, 3. Lawyers “legal malpractice” and 4. Assisted care facilities are a few of the industries who might use these tools to reduce indemnity spend and indirectly legal spend.[2] So essentially, the industries with the most data and similarity of claims have a better chance of utilizing the new technology to reduce their legal expenses. My conclusion, we are likely to see the insurance industry try this first. After all, these are the same people who brought us electronic billing, third party bill audits, alternative fee arrangements and staff counsel.

I get the part that I am a shelter builder and not a windmill builder but this is a profession, right? Even the local news reported last week that OKC neighborhoods are complaining about windmill noise. Isn’t there an old saying that goes something like “garbage in equals garbage out”? Are there privacy and ethical issues surrounding the use and sharing of data for DA, PM and AI to evaluate claims and settlement, sure there are. Have all of those been addressed or even thought of, probably not. So we have plenty of unanswered questions going forward but can we ignore these advancements and their effect on the legal practice and profession? Do so at your own peril. As we all know the ABA in 2012 added to the comments of Rule 1.1 that lawyers have a duty to keep abreast of the benefits and risks associated with technology.[3] Now the Florida Supreme Court has approved a rule to go into effect in 2017 requiring members of the Florida Bar to take mandatory technology CLEs.[4] Since this is for the October issue, consider that I am really only writing this article in honor of a good Halloween fright.

After all, consider that we have seen humans get into trouble when relying on AI before: 1. Skynet[5], 2. Genisys[6], 3. HAL 9000[7], 4. Auto[8] 5. V.I.K.I[9], 6. WOPR[10], 7. Agent Smith and the Machines[11], 8. The Red Queen[12].Trick or Treat?

End Notes:

  1. Data Analytics and Predictive Modeling: Game Changer for How You Manage Claims…And View Your Lawyer; Stephen Embry, Pulse, LinkedIn, 9-23-2016
  2. Id.
  3. Rule 1.1 comments, ABA Model Rules of Professional Conduct
  4. In Re: Amendments to Rules Regulating the Florida Bar 4-1.1 and 6-10.3 (Fla S. Ct. Sept. 29. 2016)
  5. Terminator films (1984-2009)
  6. Terminator Genisys (2015)
  7. 2001: A Space Odyssey (1968)
  8. Wall-E (2000)
  9. I, Robot (2004)
  10. War Games (1983)
  11. The Matrix Trilogy (1999-2003)
  12. Resident Evil (2002)

 

 

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

Briefcase Year In Review

Approximately one year ago I finally made good on my promise to Judge Geary Walke that I had made three years earlier to write a series of columns for the OCBA Briefcase. This started out as a trilogy of articles for the OCBA Briefcase introducing more mature practitioners to new technology, social media and the inherent issues for attorneys that come with “progress”. In the past twelve months I have learned that it is (1) difficult to teach an old dog new tricks, (2) no good deed goes unpunished and (3) it is very difficult to write a monthly article much less a biweekly blog. One of my favorite writers, Dave Barry, a Pulitzer Prize winner[1] pens a year-end review each year that is a worthy piece of writing[2]. So with lofty goals I set myself up to be a witty literate attorney writing for the good of the profession. In September 2015, I set out to write a monthly installment for the Briefcase and also publish it as an internet blog entitled “Open & Obvious?” The only failure guaranteed more so than this project is rating my beloved Sooners in the top 3 preseason with an incredibly difficult early schedule and my true belief that they will go undefeated.

However, I did not immediately get 100 likes or followers on social media from this nor did the Sooners get to 1-0. Nor did I get a new client. So many attorneys immediately ask themselves without a new paying client and no ego gratification, why do it. I guess all attorneys are inherently modern day Don Quixotes, regardless of age. For without holding tightly to the cause of civil justice, how could we remain in this profession. I, for one, did learn from this exercise and will persevere on behalf of the good of the County Bar and Oklahoma Lawyers.

It is only fitting that Judge Walke, who got me into this mess, would retire as editor on the one year anniversary of my first Briefcase article. I feel a little bit like Charlie Brown trying to kick the football that Judge Walke just pulled away. But some other things have been learned along the way. My first installment entitled “Natives v. Immigrants” was written when people nationally were talking about building walls. Some people are still talking about building walls and even visited the other side of said proposed wall. I was simply explaining why technology was a natural for millennials and not so much for boomers. My second article generally dealt with whether old lawyers were too far along to understand new social media. No real changes on that front to report but I did get a few readers of my blog on LinkedIn and Facebook. Skipping along, the theme of a later article was “When is a Friend Not a Friend”. Since that time “friends” have cyber penetrated just about every computer system available to penetrate including national retailers, banks, the IRS, Dropbox, LinkedIn and the Democratic National Committee. My article begging for friends, “Can I Be Your Friend” got me nowhere.  The next installment “Did My New Friend Just Take My Data?” is a question that the DNC is still asking.

With some trepidation, I ventured into bar exam pass rate territory in another article. This article even drew a rebuttal article published by Judge Geary Walke, himself. So I guess I really missed the mark on that one. But, bar exam results are around again and so are the same discussions as before. In a follow up installment, I listed considerations for getting your own piece of the cloud before they run out of clouds. I wrote this article so well that I am actually buying a piece of a cloud complete with all the cyber security bells and whistles. Encrypted email ability is now a must have for many clients. Are any of you doing these things?

Then came “Are They Really Super?” Well I just received a boat load of notifications online of certain “Best Lawyers™” and “Super Lawyers™” at firms and for lawyers that I know. On cue with this article, I received an email to be named a “Best Premises Lawyer in Oklahoma” from a European publication to be paid in euros, I forwarded it to Judge Walke to prove I do not write fiction. One of my lawyer friends, who is licensed in New York, recently posted on Facebook that he had received multiple invitations to be nominated to the Top 100 Lawyers in the state of New York in his practice area. He noted the cost of such honor and that at the time of his last invitation there had been around 700 acceptances. As of this writing, I received an invitation to be one of the 100 something in Oklahoma lawyers. Again wondering how they count to 100 I saw that most lawyers in Hiltgen & Brewer received this same letter. I do note that several of the national and local publications now have very similar disclosure language for honors to the New Jersey opinion requirements I discussed about in that article. It seems that the publishers are being proactive on the ethics front regardless of the state. It is good for the profession and makes sense since these honors reach all 50 states and the globe via the internet.

So I hope that you got something out of this yearlong writing exercise and if nothing else, at least a little knowledge of what technology is out there and available. I also just received an invitation from one of the major publishers of lawyer marketing materials announcing an interactive webinar on blogging for all of those law firms wanting to increase their business. Their premise is that legal surveys show that law firms who regularly blog more effectively communicate with their potential markets and clients. Maybe, just maybe, I am ahead of the curve. I’ll continue to contribute to the Briefcase and publish in “Open and Obvious?” and hopefully with practice I’ll do better. Unlike Judge Walke, I am not ready to retire my quill and ink. And as in a popular cable television series, no one is really dead unless you see their head on a pole.

End Notes:

  1. en.wikipedia.org/wiki/Dave_Barry
  2. Miami Herald, Dave Barry’s 2015 Year In Review, December 23, 2015.

 

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

Are They Really Super?

Are They Really Super?

                     YOUR “RISING STARS” JUST GOT SHOT DOWN

Lawyer advertising that use phrases such as “Super Lawyers™”, “Rising Stars™”, “Best Lawyers™”, “Best Law Firms™”, “America’s Leading Lawyers™”, “Top Ranked™” or other similar phrases, just took a hit, and in of all places, New Jersey. It seems that the number of complaints by other lawyers about those advertising such laurels and accomplishments not being worthy of such titles resulted in a May 4, 2016 Notice to the Bar from the New Jersey Supreme Court Committee on Attorney Advertising[1]. These coveted badges, icons and logos appear on letter head, business cards and websites. It seems like a day does not pass without receipt of an email offering me the opportunity to be named the “Best Premises Liability Lawyer in Oklahoma” on someone’s list. However, a drawback has been that I can never figure out whether the price quoted was in euros, pounds, sterling or some other monetary denomination I was unfamiliar with and whether the publisher of this accolade was indeed going to publish it in the United States at all. I have even had similar discussions with lawyers who are under the misconceived notion that they are the only lawyer that is receiving such emails.

Putting all practical concerns about how to spend your marketing dollars aside, and there are many ways to do that, there is the ever present ABA Model Rule 7.1 to govern our choices:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. [2]

The ABA Eye On Ethics, July 2016 blog article deals with the issue of LinkedIn and what a lawyer should do when a client, former client, friend, family member or competitor rates you for a skill which you in fact do not have.[3] This should be cause for concern for all of us to go review the reviews we receive. I readily admit I do not practice in certain areas of law and would be shocked if someone gave me a high rating for those skills on any website. However, in this article we are dealing with the issues of the super and the not so super.

The business of lawyer advertising has trended upward exponentially with the use of the internet. Consequently, we should not be surprised that many of the selection businesses for honors and accolades are owned by the same company that wants to market and build your website, blogs, electronic newsletters. Some may recall these companies started out in lawyer advertising by selling law firms and lawyers top placement on web searches and quick response buttons.

I must confess that I trumpet my honors and accolades on my web page and pay the piper to do so. A quick web site search of Oklahoma law firms in all types of practices, small and large alike, reveals that everyone else seems to be doing the same thing. Here is the rub, what do the public consumers of professional services believe when they see this advertising portrayed as an honor? In order to protect against misrepresentation, we fall back on ABA Model Rule 7.1. The Oklahoma corollary contains the same language.[4] Interestingly, New Jersey’s version of the rule contains an official comment requiring:

As a preliminary matter, a lawyer who seeks to advertise the receipt of an award, honor, or accolade that compares the lawyer’s services to other lawyers’ services   must first ascertain where the organization conferring the award has made “inquiry into attorney’s fitness. The rating or certifying methodology must have included           inquiry into the lawyer’s qualifications and considered those qualifications in       selecting the lawyer for inclusion.” This inquiry into the lawyer’s fitness must be   more rigorous than a simple tally of the lawyer’s years of practice and lack of disciplinary history. Pursuant to Rule of Professional Conduct 7.1(a)(3)(ii), the basis for the comparison must be substantiated, bona fide and verifiable.[5]

 

Oklahoma does not have comparable commentary but does include comments concerning the prohibition against misleading but truthful statements or truthful reports. Oklahoma also contemplates a disclaimer but does not provide required elements.[6] However, the New Jersey trend may be coming to all states as the need for rational limits seems to raise its head. Consequently, vetting the awarding organization that has chosen you or your firm before you give them a check makes sense. New Jersey adds additional steps, once this has been verified, you then need to display beside your badge, icon or referred to honor in close proximity to the reference a description of the standard or methodology of which the award is based, the name of the comparing organization and finally a disclaimer that no aspect of this advertisement has been approved by the Supreme Court of New Jersey.[7]

So for the time being, you are safe to squander your budget as you wish. However, pay close attention to future guidance issued by the General Counsel’s office and OBA. Since we don’t practice in New Jersey, I am not aware of what gave rise to the ground swell of complaints that some lawyers weren’t super, rising, best or leading. It could have been one of several reasons, such as; (1) those who simply did not have the money to advertise those accolades; (2) those who were jealous for being over looked for honors; or (3) legitimately complaining that those receiving honors were not worthy. Until the Oklahoma lawyer advertising ethics landscape changes, we will be pursuing those badges, icons and logos with the rest of you; it is sort of like pursuing stars, points and miles except that you don’t get a free trip, free room or free latte and maybe not even a new client. But I did find a Pokemon in the parking lot.

End Notes:

 

  1.     New Jersey Bar Assoc. Advertising Committee available at           www.judiciary.state.nj.us/notices/2016/n160518a.pdf, 2016-07-14.
  2.    ABA Model Rule 7.1
  3.       www.americanbar.org/publications/youraba/2016/july-2016/endorsements-on- social- media-websites
  4. Okla. Stat. tit.5, App. 3-A §Rule 7.1 (2008)
  5.    http://www.judiciary.state.nj.us/ notices/2016/n160518a.pdf
  6.   Okla.Stat.tit.5 App 3-A§ Rule 7.1 (2008), supra at comments 2 & 3
  7. New Jersey Assoc., Supra.

 

 

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

 

 

 

 

 

 

 

 

HEY! YOU! GET OFF OF MY CLOUD…

HEY! YOU! GET OFF OF MY CLOUD…

HEY! YOU! GET OFF OF MY CLOUD…[1]

           Just the other day my biggest storage problem was sufficient storage space, maintaining files for five (5) years after closure and what to do with file storage during the occasional flood or tornado. Recently, our firm’s business manager asked me if we could do something about the stacks and stacks of DVDs, CDs and thumb drives we were going through sending documents to clients, consultants, experts and opposing parties. Apparently, we send those out and never get them back. Adding to the expense issue, we also receive them from outside sources, print them, upload them to our hard drive, put them in the file and leave them there. This is not a paperless office by any stretch of the imagination even though our IT consultant regularly advises us to purchase more hard drive space. All this leads me to purchasing my little piece of the cloud.

          But how do I go about it, everyone has heard the horror stories of placing their client files and work product in the cloud and having the cloud owner (who knew before now that humans could create and own clouds) delete those files unintentionally during a “purge”. I note that our firm has a couple of 2 terabyte external hard drives on the shelf that have been used for various past significant e-discovery projects. Those cost money. Also, shortly after hurricane Katrina we developed with our IT provider a disaster backup system that is double redundant. More added cost. Our firm and clients have retained e-discovery experts who allowed us for a short time to rent a piece of their cloud for e-discovery projects. Even more expense added to the bottom line. Can owning a piece of the cloud really provide a less expensive alternative? I am not sure if these issues present the same expense problems for big law that they do for middle, small and solo firm practitioners but here is some guidance on the way to your cloud from those you can trust. Rather than the Stones, let’s begin with the ABA.

The ABA Legal Technology Resource Center on their cloud computing for lawyers page broadly defines cloud computing as a category of software and services delivered over the internet rather than installed locally on a user’s computer.[2] The cloud offers a variety of potential advantages including:

  • Low upfront costs
  • Easy mobile access
  • Simple setup and configuration
  • Built-in disaster preparedness

This seems to solve a lot of the expense problems earlier identified. The ABA Legal Technology Resource Center has also collected a variety of resources easily accessible from their site for you to review.

Next, we look to the OBA for some guidance. Please do a search at okbar.org/members/search for cloud computing. You will find references to Ethics counsel articles by Travis Pickens, former Ethics counsel and practice management tips from Jim Calloway and Debbie Foster. While instructive on this issue, please keep in mind these were published before any security standards were being considered and prior to many states providing ethical guidance for cloud use by attorneys.

Always quick to jump on a blog for information, I turn to Jeff Bennion’s blog article on Above the Law.[3] Jeff, a practicing San Diego solo attorney, writes “I think that cloud computing is one of the biggest technology revolutions in recent history. It gives us the ability to share large files, backup and sync files across multiple computers, and undelete things. As a solo, it’s not just convenience, but it also has huge implications for me- I can grow my practice or shrink my practice without having to buy storage servers and enter into IT maintenance contracts…as we all know, the way lawyers store our confidential files is highly regulated. Cloud storage means that your files are stored on someone else’s server in some other location and you remotely access those files. So, can you or should you do that?”[4] Jeff’s answer is that it is mostly ethical and he refers to the ABA guide chart of ethics opinions. About half the states have said yes with caveats such as, attorneys must use “reasonable care” in using the cloud. By the way, Oklahoma has not yet provided an ethics opinion in this regard.

Jeff looks at an Ohio ethics opinion for an example, as it provides four factors to evaluate the appropriateness of the cloud including:

  1. Competently select a vendor.
  2. Preserve confidentiality.
  3. Supervise cloud vendors.
  4. Communication with the client.

These seem to be vague factors and interestingly, California says you can store client data on the cloud without taking additional precautions only if it is urgent. Jeff’s article seems to indicate that there are certain cloud storage providers that are not going to satisfy an attorney’s ethical requirements for storing client data in the cloud. From Jeff’s blog I learned about the Legal Cloud Computing Association (LCCA)[5] which in March of 2016 after a comment and discussion period, published a set of standards for how lawyers should handle cloud computing issues. Keep in mind the LCCA guidelines are not mandatory but they are definitely something you should consider. The LCCA security standard table of contents is a good starting point before taking on the standard themselves. Don’t worry they are not that long.[6]

These Cloud Security Standards were also announced at the 2016 ABA TechShow in March of 2016. According to Fiona Finn, a cloud blogger at Clio the twenty-one (21) security standards were expertly crafted and vetted based on current and future needs of lawyers and their clients. Based on impending and current issues and threats, the version now available online addresses cyber security, client data management, encryption techniques and other constructive information for lawyers.[7] Understand that the LCCA was formed in 2010 by leading cloud computing software providers but not by all of them. Consequently, some of those highly marketed names we see in our email inbox, do not meet the LCCA requirements and/or are not part of this group. I cannot comment on how competition has affected who does and who does not belong. It seems like the best path to proceed is for a legal practitioner to first check for a state ethics opinion, then look for a vendor who is compliant with LCCA security standards, and then cost shop vendors. A LCCA certification for vendors does not seem to exist in this regard. Is this a complete and inexpensive solution to the issues facing legal practitioners who tire of killing trees; mostly but not completely. The more our small firms attempt to go paperless, it seems like the more paper we create. As I worked out this draft article, I am reminded the other expense I hope to cut is the secure paper shredding and file storage vendor costs. I am not sure we will ever get to a best practices level on file storage, but cloud storage seems to be a step in the right direction. Now, don’t hang around ‘cause two’s a crowd, on my cloud baby…[8] Get your own cloud, before they are all taken.

Footnotes:

  1. Jagger/Richards, Decca 1965
  2. http://www.americanbar.org/groups/departments_offices/legaltechnology_resources
  3. Can Lawyers Use the Cloud? Should Lawyers Use the Cloud?/AboveTheLaw/JeffBennion 2-23-2016
  4. Id.
  5. http://www.legalcloudcomputingassociation.org
  6. http://www.legalcloudcomputingassociation.org/standards
  7. www.goclio.com/blog/legal-cloud-computing-association 3-16-2016
  8. Jagger/Richards, Decca 1965

 

 

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

 

 

 

 

 

 

 

 

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

IS MY LAW FIRM OWNED BY LAWYERS?

IS MY LAW FIRM OWNED BY LAWYERS?

IS MY LAW FIRM OWNED BY LAWYERS AND MANAGED BY LAWYERS? 

          Just when you thought low bar passage rates nationwide were the problem for the profession, another tiger is crouching at your door. The landscape for delivery of legal services future is rapidly changing, effecting our chosen profession and is coming to your computer or smart phone. The ABA Commission on the Future of Legal Services is on the move concerning Alternative Business Structures (ABS)[1]. As the ABA moves forward to provide a guide for states in the regulation of ABS (also non-traditional legal service providers), aggressive entities, whose primary function is to provide only legal services but whose ownership may not only be lawyers, are entering markets throughout the United States. Among the Rules of Professional Conduct stands Rule 5.4, which prohibits non-lawyer ownership of law firms, non-lawyer management of law firms and sharing of fees with non-lawyers (except under very limited circumstances). Currently, only two jurisdictions permit forms of ABS that are exceptions to Rule 5.4. Limited exceptions exist in accordance with 5.4(b). Oklahoma also regulates the legal practice in accordance with Rules 5.4 and 5.5. By the time this article reaches publication, the comment time provided for by the ABA will be closed (notice and comment were only allowed for in about a two to four week time frame). Additionally, only ABA members could access the proposal on the ABA website.

Recently relying on the proposed ABA resolution, companies like AVVO (www.avvo.com) have entered into fixed fee telephonic legal advice services in eighteen (18) of the nation’s most populace states. AVVO’s CEO has a goal to be the “Match.com of legal”.[2] The rub here is that the “fixed” fee structure used by AVVO includes a sliding scale marketing fee paid to AVVO. Clients of AVVO choose a service and an attorney from a provided list and make full payment up front through AVVO’s website. AVVO then notifies the attorney who contacts the client directly and completes the service. Once a month, AVVO deposits earned fees into the attorney’s operating account. As a separate transaction, AVVO withdraws from the account a per service marketing fee. The fee varies in amount according to the service provided.[3] Since this scenario does not appear to be a flat or fixed fee situation and the fee, including marketing fee, vary by service provided, this looks a lot like fee sharing with a non-lawyer.

Significantly, the ABA Commission on the Future of Legal Services is considering ABS structures that allow ownership investment by non-lawyers at all percentages and active participation and operations of legal service entities by persons who are not licensed lawyers.[4] Other issues are raised when dealing with multi-disciplinary practice but that is not the point of this article. Although similar, these are not the same questions that were raised when pre-paid legal services came on the scene. Those issues were resolved by the ABA and in Oklahoma early on.[5]

In the near future, will traditional attorneys and law firms compete with ABS legal service providers on price and quality? AVVO CEO, Mark Britton claims “we put the needy consumer together with the needy lawyer.”[6] While it may be true that there are consumer needs for legal services that are not being met by the current law firm model, does a Match.com or Tinder App scenario really provide a good solution.

If the client cannot afford a $150-$250 an hour lawyer, but can afford a flat fee for the simple task they need accomplished, will they still get the same level of quality and competency? If this is the direction of the profession, then does it behoove current law firm ownership to move toward ABS structures or multi-disciplinary practices in order to attract a larger piece of the market by providing more services? Does crossing state lines via the internet, even if only for a specified question and response, constitute practicing law in another jurisdiction? Rather than a line of credit at the local bank, does a lawyer now seek passive investor partners or in the case of big law, do they seek financing from a new partner in the firm that may be an investment firm or hedge fund?

Hypothetically, a savvy entrepreneur with a good computer program and internet marketing plan could contract with numerous recent law school grads and successful bar exam takers to provide a web based legal service provider accessible to consumers in multiple jurisdictions. It might even develop into an App you can download to your smart phone. A question that arises is who is there to mentor, guide, supervise, correct or lift up the young lawyers? What keeps the contract attorney from going outside of his area of knowledge or jurisdiction? Who has the client relationship and fee contract? This does not seem like progress toward maintaining professional competency and integrity in providing legal services to clients. By the way, AVVO plans to add many other states to its coverage by the end of the year.[7]

Many of the questions I raise are not new to the profession. Understand that the proposed guidelines from the ABA are aimed at regulating the issues I raise and many others. The next steps in regulation will be taken at the State Bar level. As the legal profession evolves through time and technological innovation, is this a direction that will further erode the public view of lawyers as professionals? But then again, I was worried about bar exam integrity and scaling of scores; and after all, I’m just a caveman. This world frightens and confuses me! Sometimes I just want to get off LinkedIn and other social media, get my data out of the cloud, throw away my iPhone 6 and go fishing. But I do know this…the times they are a changing.[8]

 

Endnotes:

  1. Memorandum from The ABA Commission on the Future of Legal Services to the ABA Entities, Courts, Bar Associations (state, local, specialty, and international), Law Schools, Disciplinary Agencies, Individual Clients, and Client Entities (Apr. 8, 2016)(on file with the ABA Commission).
  2. Robert J. Ambrogi, http://www.abajournal.com/magazine/article/is_avvos_fixed_cost_legal_service_a_fee_sharing_violation/ (Posted May 1, 2016).
  3. Id.
  4. Memorandum from The ABA Commission on the Future of Legal Services to the ABA Entities, Courts, Bar Associations (state, local, specialty, and international), Law Schools, Disciplinary Agencies, Individual Clients, and Client Entities (Apr. 8, 2016)(on file with the ABA Commission).
  5. ABA Formal Ethics Opinion 85-F-102, December 16, 1985, available at http://www.tbpr.org/ethic_opinions/85-F-102 (citing to ABA Formal Ethics Opinion No. 332, August 1972).
  6. Robert J. Ambrogi, http://www.abajournal.com/magazine/article/is_avvos_fixed_cost_legal_service_a_fee_sharing_violation/ (Posted May 1, 2016).
  7. Id.
  8. Acknowledgement to SNL and the late great Phil Hartman.

 

Byline: Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email mbrewer@hbokc.law, call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.